Rethinking Article 38.23(a) Jury Instructions

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

Tex. Code Crim. Proc. Ann. art. 38.23(a)

Defense counsel have struggled with the question of how a jury views an Article 38.23(a) jury instruction. Will the jury  be able to provide the necessary system of checks and balances on a denial by a trial judge of a motion to suppress? Will the jury use their life experiences, including their history of encounters with law enforcement, while considering a 38.23(a) jury instruction? The frustrating reality is, we rarely hear of a jury agreeing with a 38.23(a) instruction. With juries rarely acting favorably on 38.23(a) instructions, the frequency of requests for such instructions tends to diminish over time.

The case law regarding obtaining these types of jury instructions is not exactly friendly toward defense counsel. In Serrano v. State, 464 S.W.3d 1 (Tex. App. – Houston [1st Dist.] 2015, pet. ref’d), the officer claimed the defendant was speeding, conducted a traffic stop, claimed he smelled the odor of alcohol from the car, and suspected the defendant was intoxicated given the defendant’s bloodshot eyes and slurred speech. At the police station, the officer met with the breath test operator (BTO). The officer agreed with defense counsel that the BTO first came in contact with the defendant when they entered the intoxilyzer room where breath testing is conducted. In the intoxilyzer room, the BTO turned on a video recording device, read the defendant the statutory warning, and requested a breath sample. The video recorded for approximately six minutes before the BTO turned it off to conduct the breath test. The officer testified that there was no time lapse from when the video ended until the time the defendant provided his breath sample. The BTO testified that the BTO “has to make sure that the suspect is watched over for 15 minutes” before taking a breath test. The defense claimed the 15-minute period was not met so the breath test was inadmissible. The trial judge admitted the breath test into evidence, and the defense requested a 38.23(a) instruction which the trial judge denied. The defense claimed it raised the factual issue of whether the BTO waited 15 minutes before taking the breath sample. The court of appeals held that the defendant “failed to raise a fact issue about whether [the BTO] complied with Texas Administrative Code section 19.4(c)(1) and that Serrano therefore was not entitled to the submission of an article 38.23 instruction.”

In Villalobos v. State, 550 S.W.3d 364 (Tex. App. – Houston [14th Dist.] 2018, pet. ref’d), the court of appeals found that the trial judge reasonably concluded that the defendant was temporarily detained for a DWI investigation, was not in custody, Miranda did not apply, and the area where the defendant was found was a suspicious place. The defendant requested a 38.23(a) instruction on the issue of “suspicious place” which was denied by the trial judge. The court of appeals found no authority for the claim that a defendant is entitled to a jury question regarding the legality of an arrest based on whether the defendant was found in a suspicious place. The court of appeals held that Article 38.23 applies only to illegally obtained evidence and does not address the legality of warrantless arrests.

In the recent published case of Sanchez v. State, No. 04-18-00302-CR (Tex. App. – San Antonio, April 17, 2019), an officer saw a defendant allegedly commit two distinct traffic violations: (1) failure to drive on the right side of the road in violation of Tex. Transp. Code Ann. § 545.051(a)(2); and (2) failure to signal a lane change in violation of Tex. Transp. Code Ann. § 545.104(a). Defense counsel requested a 38.23(a) instruction on these two issues which was denied by the trial judge. In affirming, the court of appeals began by stating Article 38.23(a) provides that illegally obtained evidence is inadmissible. The court of appeals stated that a 38.23(a) jury instruction is limited to disputed issues of fact material to a defendant’s claim that a constitutional or statutory violation renders certain evidence inadmissible. Three requirements must be met before a defendant is entitled to a 38.23(a) instruction: (1) evidence before the jury must raise an issue of fact; (2) evidence on that issue of fact must be affirmatively contested; and (3) that contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence. Merely raising the contested factual issue during cross-examination is insufficient to create a factual dispute warranting a 38.23(a) instruction. Defense counsel must dispute the contested factual issue, otherwise the legality of the conduct is determined by the trial judge alone, as a question of law. Defense counsel must further dispute all other facts which are sufficient to support the lawfulness of the challenged conduct. Absent such contesting of all factual issues by defense counsel, “the disputed fact issue is not submitted to the jury because it is not material to the ultimate admissibility of the evidence.” The court of appeals held that defense counsel failed to produce any evidence supporting an issue of fact that was affirmatively contested regarding whether the defendant turned left without signaling. Without such evidence, the defendant was not entitled to a 38.23(a) instruction.

In the recent published case of Olsen v. State, No. 01-18-00281-CR (Tex. App. – Houston [1st Dist.], April 14, 2020, no pet. h.), the defendant was convicted of felony DWI with a child passenger. The defendant requested a 38.23(a) instruction which was denied by the trial judge. The court of appeals affirmed and concluded that the defense did not contest the fact that the defendant allegedly exhibited clues on the SFST’s that were consistent with intoxication. The court of appeals stated that the defendant’s results on the HGN, WAT, and OLS were consistent with intoxication. The court of appeals noted that the officer’s subjective perception of the defendant’s physical and mental faculties was not a fact supporting probable cause, but the defendant’s performance on the SFST’s was a material fact supporting probable cause for the defendant’s arrest. The defense, however, did not contest this at trial. Because the defendant “did not challenge the administration of any of the field sobriety tests or her performance on those tests, particularly the HGN, she failed to contest all facts material to the probable-cause determination.” The court of appeals then concluded that because the defendant “failed to contest all facts material to the lawfulness of her arrest in this case, we conclude that [the defendant] has not raised a fact issue essential to the determination of probable cause. Therefore, the trial court did not err by denying [the defendant’s] request to submit an Article 38.23 instruction to the jury.”

If you plan on seeking a 38.23(a) instruction in your case, be sure to adhere to the rationale of the foregoing case law, such that you are able to convince the trial judge to give you a 38.23(a) instruction. Additionally, during voir dire be sure to address 38.23(a) instructions with the venire panel. If argue and follow the rationale of the above case law and properly dispute the contested factual issue and obtain a 38.23(a) instruction, will the jury be sympathetic to your argument? You should voir dire the panel about their thoughts and feelings on your contested factual issue in general, before you decide which panel members would be acceptable jurors for your case. We all know you cannot talk about the facts of your case during voir dire and that you cannot commit a potential juror. Standefer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001). You may, however, inquire into the venire member’s philosophical thoughts about the criminal justice system. Davis v. State, 349 S.W.3d 517 (Tex. Crim. App. 2011). Also, you may voir dire on the different standards of proof. Contreras v. State, 440 S.W.3d 85 (Tex. App. – Waco 2012, pet. dism’d). These are two powerful tools of inquiry, which can help you better determine which potential jurors may be receptive to your contested factual issue.

During the current period of acute awareness of social inequality, potential jurors should be open to express their views regarding such key issues as reasonable suspicion to detain a person and probable cause to arrest a person. We know that these standards of proof are covered during voir dire to help distinguish between the highest standard of beyond a reasonable doubt with the lesser known standards of proof. A potential juror with certain views on these issues may be, depending on the issues in your case, an excellent juror on the particular contested factual issue, in your case.

A reading of the 2020 article “The Supreme Court Built America’s Broken Policing System And It’s Working Just As Intended” by Paul Blumenthal in Huffpost provides particularly good thoughts on these issues for use by defense counsel during voir dire. As of July 26, 2020, this article may be found at https://www.huffpost.com/entry/police-george-floyd-supreme-court_n_5f175371c5b6cac5b7330b29?ncid=APPLENEWS00001. Mr. Blumenthal reminds us that Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), involved two Black men repeatedly looking into a store window during the daytime and an officer finding that suspicious but the officer was unable to articulate why he found that suspicious. The two Black men refused to provide their names to the officer which further aroused the officer’s suspicion, so the officer grabbed the men, pushed them against a wall, and searched their bodies and pockets. This case involved the highly contentious stop-and-frisk of suspicious persons (mostly minorities) by police based upon reasonable suspicion and how stop-and-frisk is condoned by the courts. Mr. Blumenthal reminds us to hear again the prophetic warnings by the lone Terry dissenter, Justice William Douglas:

We hold today that the police have greater authority to make a “seizure” and conduct a “search” than a judge has to authorize such action . . . To give the police greater power than a magistrate is to take a long step down the totalitarian path . . . Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.

Terry v. Ohio, supra (Douglas, J., dissenting).

It has always been extremely difficult to find venire members who care about any of these issues,  let alone someone on the trial or appellate bench who would voice the warnings voiced by Justice Douglas in Terry. Today, with the heightened concerns regarding  social inequality, and specifically that of racial inequality, raise the question of what would your venire panel think, when asked about how much evidence an officer needs, before that officer could grab two Black men while they were repeatedly looking into a store window during the daytime, shove them against a wall, and search them? What should we brothers and sisters of the criminal defense bar think about this situation? I suggest that these issues should cause us to rethink Article 38.23(a) jury instructions and how we attempt to ensure that the people who are sworn in as jurors in our cases are best suited to be open to consider the contested factual issues which are present and argued. These issues should also cause us to rethink how our profession and the criminal justice system is viewed by venire and by the public at large. Good luck on your cases.

TCDLA
TCDLA
Michael C. Gross
Michael C. Gross
Michael C. Gross is currently the President-Elect of the Texas Criminal Defense Lawyers Association and is a partner with Gross & Esparza, P.L.L.C., San Antonio, Texas. He received his B.A., Trinity University, San Antonio, Texas, 1984; J.D., St. Mary’s University, San Antonio, Texas, 1987. Mr. Gross’ professional activities include Judge Advocate in the United States Marine Corps from 1988-1992. His court admissions include the Supreme Court of the United States; Supreme Court of the State of Texas; United States Court of Appeals for the Armed Forces; United States Court of Appeals for the Fifth Circuit; United States Court of Appeals for the Tenth Circuit; and United States District Courts for the Northern, Southern, Eastern, and Western Districts of Texas. He is board certified in criminal trial advocacy by the National Board of Trial Advocacy and board certified in criminal law and criminal appellate law by the Texas Board of Legal Specialization. He has been named in the Best Lawyers in America (2005-2019); Best Lawyers’ San Antonio Criminal Defense: Non-White-Collar “Lawyer of the Year” (2015, 2017); Texas Super Lawyers in Texas Monthly Magazine (2004-2019); a Top 50 Texas Super Lawyer in Central and West Texas Region (2010-2012, 2014); named one of the Top 10 criminal defense attorneys in San Antonio by S.A. Scene Magazine (2013); Best Lawyers in San Antonio by Scene in San Antonio Magazine (2004-2019); Defender of the Year, San Antonio Criminal Defense Lawyers Association (2008); Defender of the Year, San Antonio Criminal Defense Lawyers Association (2009); and is AV rated by Martindale Hubble.
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